Appeal No. EAT/1180/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 July 2002

Before
MR RECORDER LANGSTAFF QC
MR B R GIBBS
MISS D WHITTINGHAM

MRS W M HEMSTEAD	APPELLANT

LONDON BOROUGH OF BARNET	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR DECLAN O’DEMPSEY
Under The Employment Law Appeal Advice Scheme 	

MR RECORDER LANGSTAFF QC

1.	We propose to give leave in this appeal for 2 matters to be canvassed before a further hearing of this Appeal Tribunal.  It will be necessary to explain some of our reasoning in a little more than usual detail for the assistance of the Tribunal which ultimately comes to hear it.

2.	The Appellant was employed as an assistant Warden in the Barnet Countryside Centre.  In late 1999 Barnet sought to merge the work of the countryside centre and its staff with that of the Brent Countryside Centre.  This it was thought was likely to give rise to the redundancy of staff, and the Appellant was in the firing line for dismissal by reason of redundancy.  No-one argued before the Watford Employment Tribunal that the provisions of TUPE including the consultation provisions might have any relevant part to play nor has it been argued before us save simply that they might at any rate strengthen the consultation arguments.

3.	At page 5 of its decision the Tribunal in approaching the question whether section 98(4) applied such that they could conclude that the dismissal was not unfair noted specifically that the Respondents did not follow their usual procedure.  Although it seems to us that that observation might in most cases preclude argument about the adequacy of consultation consideration of the adequacy of the procedure followed.  

4.	In this particular case a document which was expressly incorporated by reference into the Appellant’s contract of employment set out in some detail redundancy procedures to be adopted.  That document should have been available to the Tribunal.  There had been an order for general disclosure.

5.	Its absence was recognised before the Tribunal began and it is plain the Appellant complained about it.  We consider that there is an arguable case (having been persuaded to that view by the submissions of Mr O’Dempsey who appears under the ELAAS Scheme that there is an arguable case) whatever its strength may ultimately be proved to be that if the Tribunal had had that document before it, and appreciated not just the persuasive force of past and present practice by the employer but also the contractual underpinning and obligation which the document revealed, the balance under s98(4) which may have been a fine one might have been struck differently.  On that basis we are persuaded that there is sufficient to permit the case to go forward.

6.	The second ground of appeal is that the Tribunal did not deal appropriately with the Applicant’s case in respect of breach of contract.  Here she claimed that her contract entitled her to redundancy payments in excess of her statutory entitlement.  She asserted her right to such a payment because, she says, a report made to the Resources Executive Committee which is to be found at page 71 in our bundle and which was part of one of the two documents missing from the Tribunal’s bundle at the start of the hearing suggests that there was a recommendation made that employees subject to the redundancy of which the Appellant’s dismissal was part should be given a payment equivalent to 12 weeks notice.

7.	The Tribunal in reviewing the evidence described that document as being simply a proposal contained in a report relating to those to be made redundant.  The report was however to a committee of the Council.  That committee would either have accepted or rejected, or possibly deferred, a decision on what was put before it as a recommendation.  The order for general disclosure before the hearing should in our view have produced a copy of the minute showing how the body of the Council before whom it came dealt with the recommendation.  There should be no need to describe the matter in evidence as being simply a “proposal”: either it was a proposal which had been rejected, in which case one would expect that fact would have been recorded by the Tribunal, or was one which had been accepted in which case there may be force in the Appellant’s claim.  

8.	We have been satisfied by Mr O’Dempsey that we should grant the application which he makes that we exercise the powers of this Tribunal under rule 27 of the Employment Appeal Tribunal Rule 1993 to require the Respondent to produce the minute which records, or the minutes which record, the way in which the Respondent Council dealt with the recommendation to which we have referred.  It appears to us that the Appellant may wish upon receipt of a copy of that disclosed document to make an application that it be received as further evidence under the well known principles of Ladd v Marshall which we for our part consider would apply to its receipt upon appeal.

9.	If there is fresh evidence which supports her case, as there may be, then it seems to us that the effect of that evidence in respect of the contractual claim needs to be examined by a full Tribunal.

10.	It is on those bases that we think that this matter should proceed to a full hearing.

11.	We also had an application made by Mr O’Dempsey to appeal against an interlocutory order made in respect of an application by the Appellant to claim that the circumstances revealed by her case constituted indirect sex discrimination, or a breach of the part time workers regulations.

12.	We are told that the Appellant received the reasons for rejecting her application on 1 June 2001.  There has been no formal application made before today for leave to appeal out of time against that decision.  We are told that the reason why no appeal was made earlier was that the Appellant was focussed upon the full hearing and its outcome and she first appreciated the significance of the refusal and what she might do about it (she being a litigant in person) when she began preparation for this appeal.

13.	In short the only matter to explain why it took so long for this appeal to be ventilated before us was the late realisation by the Appellant that it was an appeal she might wish to pursue.  In the exercise of our discretion we reject the application to appeal out of time.  It is simply too late, and we do not regard late realisation, even to someone who does not have the benefit of professional advice, as being a sufficiently good reason to persuade us to take any different course.

14.	So far as the hearing of the appeal is concerned we think it will take half a day.  It should be listed in Cagegory B.  Skeleton arguments identifying any law to be relied upon and providing copies of cases which are quoted must be provided to this Tribunal no less than 14 days prior to the hearing.